R. v. Al-Enzi, 2021 ONCA 81

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Al-Enzi, 2021 ONCA 81 DATE: 20210205 DOCKET: C63998

Tulloch, Roberts and Thorburn JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Nawaf Al-Enzi Appellant

Michael W. Lacy and Bryan Badali, for the appellant Jamie Klukach and Katie Doherty, for the respondent

Heard: June 18, 2020 by video conference

On appeal from the conviction entered on December 18, 2016 by Regional Senior Justice Bonnie R. Warkentin of the Superior Court of Justice, sitting with a jury.

Tulloch J.A.:

OVERVIEW

1On August 19, 2006, the body of Mohamed Zalal ("Mr. Zalal" or "the deceased") was found in a field by Highway 417, outside of Ottawa. He had been killed by a single gunshot wound to the back of his head.

2In June 2008, after a lengthy police investigation, the appellant, Nawaf Al-Enzi, and two others, Mahmoud Kayem, and Ali Abdul-Hussein, were charged with first degree murder in relation to Mr. Zalal's death.

3On September 26, 2010, the appellant was convicted of first degree murder by a jury. On appeal, this court set aside the conviction, finding that the appellant had not been afforded a fair trial. A new trial was ordered: R. v. Al-Enzi, 2014 ONCA 569, 121 O.R. (3d) 583, leave to appeal refused, [2014] S.C.C.A. No. 405.

4On December 18, 2016, after a second trial, the appellant was convicted of first degree murder in the death of Mr. Zalal. He now appeals his conviction.

5For the following reasons, I would dismiss the appeal.

BACKGROUND

6The following summary of evidence provides context for understanding the issues on appeal. Additional facts will be added, where required, to address each ground of appeal.

I. Discovery of the body and forensic evidence

7On August 19, 2006, the body of Mr. Zalal was discovered around noon, in a field outside of Ottawa.

8It was determined that Mr. Zalal had died of a single, perforating gunshot wound to the back of his head. The firearms evidence suggested that the gun had been fired at close range. No other injuries were present.

9The police found two cigarette butts near the body. DNA testing later revealed that the deceased's DNA profile matched the DNA found on one of the cigarettes, and Mr. Kayem's profile matched the DNA found on the other.

II. Police investigation

10During the two years following the discovery of the body, the police conducted an extensive investigation into the circumstances of Mr. Zalal's death. The investigation revealed the following:

• the appellant, Mr. Kayem, and Mr. Abdul-Hussein were known associates of Mr. Zalal;
• phone records revealed that, on August 18, 2006, there were numerous calls between the cell phones being used by the appellant, Mr. Kayem, and Mr. Zalal;
• cell tower records revealed that at approximately 11:10 p.m. on August 18, 2006, Mr. Kayem's cell phone accessed the cell tower nearest to where the deceased's body was found. The appellant's cell phone accessed that same tower at approximately 12:01 a.m. on August 19, 2006;
• while he denied any involvement, Mr. Kayem's DNA was found on a cigarette butt discovered near the body;
• the appellant claimed that he had been with Mr. Zalal on the day prior to his body being found, but that he had spent that evening with his then-wife, Zeinab Abdul-Hussein, at an exhibition and at a bar in Québec. However, security footage from the only entrance and exit at the bar did not show the appellant or his wife in attendance. Cell tower records also showed that the appellant's cellphone did not access any of the cell towers near the bar;
• intercepted communications revealed a number of potentially incriminating conversations, including: i. a November 2007 conversation between the appellant and Mr. Abdul-Hussein, in which the appellant reassured Mr. Abdul-Hussein after an interaction with police, telling him that "[t]hey gotta prove it"; ii. a November 2007 conversation between the appellant and his brother, in which the appellant repeatedly asked his brother to confirm that he took apart and threw away "the nine"; iii. a conversation between the appellant and a friend, in which the appellant appears to acknowledge a dispute between himself and Mr. Zalal over a firearm that he had borrowed from Mr. Zalal; iv. multiple conversations between the appellant and Mr. Kayem, in which they repeatedly mention that no one has said anything and that the police "don't have anything"; and v. multiple conversations between the appellant and Ms. Abdul-Hussein, in which they repeatedly made mention of a person they referred to as "Auntie". Based on the content and context of the calls, it was possible that "Auntie" referred to Mr. Kayem, and that the conversations were about how to keep Mr. Kayem, who had travelled to Dubai after the murder, from returning to Canada.
• a witness, Ramin Khaleyi, told police that the appellant had confessed to murdering Mr. Zalal, and that Mr. Kayem and Mr. Abdul-Hussein had also been involved.

11In June 2008, on the basis of this evidence, the police arrested the appellant, Mr. Kayem, and Mr. Abdul-Hussein in connection with the death of Mr. Zalal. All three were charged with first degree murder. The appellant and Mr. Abdul-Hussein were charged jointly, and Mr. Kayem was charged separately.

III. Events leading up to the appellant's first trial

12After his arrest, Mr. Kayem was interviewed by police and confronted with the DNA evidence linking him to the scene. Though he had previously maintained that he had not been involved in Mr. Zalal's death, he provided a statement in which he admitted that he had been present at the murder. He claimed that the appellant was responsible for Mr. Zalal's killing. Mr. Kayem was subsequently committed to trial after a preliminary hearing.

13In October 2009, after a joint-preliminary hearing for the appellant and Mr. Abdul-Hussein, Mr. Abdul-Hussein pleaded guilty to being an accessory after the fact and received a sentence of time served. He subsequently provided a statement to police in which he identified the appellant as the killer. After obtaining the statement, the Crown decided to proceed jointly against the appellant and Mr. Kayem.

IV. First trial and appeal

14Midway through the appellant's first trial, the appellant's lawyer withdrew from the case pursuant to the Law Society of Ontario's Rules of Professional Conduct. He claimed that he was required to withdraw as a matter of ethics, but that the appellant was blameless and not to be faulted for the withdrawal.

15As the appellant was now unrepresented, the trial judge adjourned proceedings for nearly four months to allow the appellant to find another lawyer. Despite engaging in a thorough search, however, the appellant was unable to find a defence lawyer prepared to step into the middle of a first degree murder trial.

16As a result of his inability to find representation, the appellant brought an application for severance on the grounds that he was not capable of representing himself and would suffer prejudice. The trial judge dismissed the application, instead appointing amicus in an expanded role to assist the appellant.

17At the conclusion of the trial, a jury convicted the appellant of first degree murder. The appellant's co-accused, Mr. Kayem, was acquitted.

18The appellant's conviction was subsequently overturned by this court. At para. 96 of his reasons, Laskin J.A. found that the trial judge had:

exercised his discretion unreasonably by denying Al-Enzi a severance or a mistrial so that he could retain a lawyer to represent him at a new trial. The appointment of amicus, even with an expanded mandate, was not an adequate substitute for counsel for Al-Enzi. The trial judge's denial of a severance or a mistrial deprived Al-Enzi of a fair trial, both in appearance and in reality. It produced a miscarriage of justice.

19The appeal was thus allowed, the conviction set aside, and a new trial ordered.

V. Second trial

20At his second trial, the appellant was tried by a jury and convicted of first degree murder.

ISSUES ON APPEAL

21The appellant challenges his conviction on six grounds:

1. the trial judge erred in her instruction to the jury on the issue of post-offence conduct;
2. the trial judge erred in concluding that the appellant's statements to police were voluntary and admissible;
3. the trial judge erred in admitting Mr. Khaleyi's May 4, 2007 statement to police into evidence for the truth of its contents;
4. the trial judge erred in leaving constructive first degree murder by way of forcible confinement with the jury, or in her instruction to the jury on this route of liability;
5. the trial judge erred in finding that the communications between the appellant and his wife made while they were still married were not protected by spousal privilege; and
6. the trial judge erred in dismissing the appellant's challenge to the lawfulness of the intercepts.

22In the event that the appeal is allowed, the Crown raises an additional issue – whether the trial judge erred by excluding the prior testimony and sworn police statement of Mr. Abdul-Hussein. However, given that I would dismiss the appeal, there is no need to address this issue.

ANALYSIS

I. Did the trial judge err in her instruction to the jury on the issue of post-offence conduct?

(1) Background

23On August 22, 2006, three days after the discovery of Mr. Zalal's body, Detective Krista Hill was assigned to interview the appellant as part of the investigation into Mr. Zalal's death.

24That same day, the appellant contacted Detective Hill in order to retrieve his passport, which had been seized following his arrest in 2005 for an unrelated matter. The appellant left two voice mail messages. Detective Hill returned the appellant's calls, using the passport matter as an opportunity to invite the appellant to discuss the death of Mr. Zalal. While at the time, the appellant was not a suspect, he was a known associate of Mr. Zalal. Detective Hill took contemporaneous notes of the call. She testified that, while her notes were not a verbatim summary of the discussion, they covered everything that had been discussed.

25Detective Hill also testified that, although the appellant stated that he had no information to provide about Mr. Zalal's death, he provided the following information regarding his contact with Mr. Zalal on August 18, 2006:

• at about 2:00 p.m., he had picked up Mr. Zalal and two others to buy t-shirts;
• he dropped off Mr. Zalal and the others at one of their homes;
• at around 6:00 p.m., he spoke to one of the other men, at which time Mr. Zalal was still with him; and
• he was planning to meet Mr. Zalal and the others at a strip club in Gatineau, but did not end up meeting him there. Instead, he went with his wife to an exhibition and later to a bar in Québec.

26Contrary to the appellant's narrative, however, security footage from the only entrance and exit at the bar did not show the appellant or his wife in attendance. Cell tower records also showed that the appellant's cellphone did not use any of the cell towers near the bar.

27Prior to trial, the Crown brought an application to have the appellant's statement to Detective Hill admitted as voluntary: R. v. Al-Enzi, 2016 ONSC 3574 ("Voluntariness Reasons"). The Crown sought to use the statement as evidence that the appellant had deliberately lied to conceal his guilt. The appellant challenged the application, arguing, among other things, that the statement should not be admitted on the basis that it had limited probative value.

28According to the appellant, the statement served no purpose other than to memorialize the alleged falsehood that he had been at a bar in Québec on the night of August 18. Even if the statement was proven false, its falsity could not be used to further the Crown's case, as a falsehood cannot be used to support an inference that an accused deliberately lied to conceal their guilt, absent independent evidence of fabrication. In support of this proposition, the appellant referred to this court's decision in R. v. O'Connor (2002), 2002 CanLII 3540 (ON CA), 170 C.C.C. (3d) 365 (Ont. C.A.).

29The appellant argued that, while such independent evidence would potentially be available in the form of the anticipated evidence of Mr. Kayem and Mr. Abdul-Hussein (who both claimed that the appellant had murdered Mr. Zalal), acceptance of that evidence would effectively render the appellant's concoction inconsequential (as the jury would already have accepted that he murdered Mr. Zalal). The evidence thus served no purpose.

30The trial judge rejected this argument, finding that the statement was admissible, as the jury was entitled to consider the cumulative effect of all the evidence.

31It was subsequently determined, however, that the hearsay evidence of both Mr. Kayem and Mr. Abdul-Hussein – which was to serve as the independent evidence of fabrication – was inadmissible: R. v. Al-Enzi, 2016 ONSC 6911; R. v. Al-Enzi, 2016 ONSC 6972.

32As a result, there was an issue at the end of the trial as to whether there was, in fact, any independent evidence of fabrication and, consequently, how the jury should be instructed on the proper use of the appellant's alleged lie to police.

33In pre-charge discussions it was agreed that, if the trial judge found that there was independent evidence of fabrication, an instruction to the jury would be necessary to explain that an inference of consciousness of guilt could only be drawn if the independent evidence of fabrication was accepted.

34Then, during mid-charge discussions, the following exchange occurred, in which the trial judge noted her intention to find that there was no independent evidence of fabrication:

Trial judge: Well I intended to make it a prohibited use of the evidence and so maybe I've just not used the wording the way it should have been used. I have to say, it was rather tricky as the fellow said it is going to be.

Defence counsel: My – might I – I respectfully perhaps ask Your Honour is – is – is it Your Honour's meaning that there was no evidence of fabrication?

Trial judge: That's right. [Emphasis added.]

35In light of this finding, further discussion ensued regarding the specific wording of the charge to the jury. The trial judge proposed the following language:

So are you happy with in all of the circumstances of – in all the circumstances this evidence is part of the narrative for you to consider along with the rest of the evidence or do you want me to change it even more than that? [Emphasis added.]

36Defence counsel indicated that he could "live with" the instruction. Crown counsel, however, opposed the use of the word "narrative", arguing instead that it should be characterized as "part of the evidence". The trial judge noted that she would consider the Crown's submission.

37The relevant portion of the trial judge's final instruction was as follows:

It is for you to decide whether Nawaf Al-Enzi's statement to the police about being at Cosmos Bar was true or false based on all the evidence presented by the Crown.

When considering what inference, if any, to draw from the evidence of Mr. Al-Enzi's claim that he was at Cosmos Bar on the night of August 18 or early morning of August 19, 2006, keep in mind that people sometimes lie for entirely innocent reasons.

This is just one piece of evidence to be considered with all the other evidence when you decide whether the Crown has proven Mr. Al-Enzi's guilt beyond a reasonable doubt. [Emphasis added.]

(2) Governing Principles

38In Canadian law, there is a well-established distinction between an exculpatory statement by an accused that is disbelieved, and one that is determined to have been fabricated or concocted to avoid culpability: R. v. Wright, 2017 ONCA 560, 354 C.C.C. (3d) 377, at para. 38. The importance of this distinction lies in the fact that, while a statement that "is merely disbelieved is not evidence that strengthens the Crown's case", a statement that has been deliberately concocted can be capable of supporting an inference of guilt: O'Connor; at para. 38. In other words, where the Crown can prove that an accused's exculpatory statement was not simply untrue, but an intentional fabrication, the trier of fact is entitled to draw an inference that the accused lied to conceal their guilt.

39However, in order to prove an intentional fabrication, the Crown must adduce evidence of that fabrication, independent of the evidence that contradicts or discredits the exculpatory statement: Wright, at paras. 40-41; O'Connor, at paras. 21-22; R. v. Laliberté, 2016 SCC 17, [2016] 1 S.C.R. 270, at paras. 3-4. Put differently, the Crown must not only adduce evidence that disproves the exculpatory statement, but also adduce independent evidence that proves that the exculpatory statement was made for the purpose of deflecting guilt from the accused. This point was also recently made by this court in the case of R. v. Ching, 2019 ONCA 619, 378 C.C.C. (3d) 284, at para. 47, where the court stated: "Independent evidence of concoction can, however, be found in the very content of the impugned statements, depending on the context in which they were made. Independent, in this sense, means that the evidence of concoction is separate from the evidence of guilt, not necessarily separate from the statements themselves. For example, where an accused has made contradictory exculpatory statements, the self-contradiction of an accused may constitute independent evidence of fabrication: see R. v. Shafia, 2016 ONCA 812, 341 C.C.C. (3d) 354, at para. 288, leave to appeal refused, [2017] S.C.C.A. No. 17." This requirement ensures that the Crown is made to prove an accused's guilt beyond a reasonable doubt, and that mere disbelief of an accused does not automatically lead to a guilty verdict: O'Connor, at para. 20, citing R. v. Coutts (1998), 1998 CanLII 4212 (ON CA), 126 C.C.C. (3d) 545 (Ont. C.A.), at pp. 551-552, leave to appeal refused, [1998] S.C.C.A. No. 450.

40Where the exculpatory statement is made out of court, independent evidence of fabrication may emerge from the evidence of the circumstances in which the statement was made. Such evidence will necessarily be case and fact specific. Some examples of such evidence are "pre-arrest exculpatory statements that are specific and detailed" or "post-arrest statements that are inherently implausible": Wright, at para. 48.

41Where such independent evidence of fabrication exists, these principles should be made clear to the trier of fact. In particular, the following should be communicated:

1. the trier of fact may, but does not have to, disbelieve the accused's exculpatory statement;
2. if they disbelieve the statement, is there other, independent evidence upon which they may, but do not have to, find that the accused fabricated the exculpatory statement;
3. if, on the basis of the independent evidence, they do not find that the accused fabricated the statement, they must ignore the statement and treat it as if it had never been given;
4. by contrast, if they do find that the accused fabricated the statement, they may consider the reason why the accused fabricated the statement, including whether it was to conceal their involvement in the offence(s) charged. This determination must be made in light of all the evidence.

See R. v. Oland, 2016 NBCA 58, at para. 69, leave to appeal refused, [2016] S.C.C.A. No. 188; D. Watt, Watt's Manual of Criminal Jury Instructions, 2nd ed. (Toronto: Thomson/Carswell, 2015).

42Where an instruction regarding fabrication is provided, a trial judge should "carefully outline what evidence is capable of constituting independent evidence of fabrication": O'Connor, at para. 38; R. v. Clause, 2016 ONCA 859, 133 O.R. (3d) 321, at para. 62.

43However, as noted in R. v. Polimac, 2010 ONCA 346, 254 C.C.C. (3d) 359, leave to appeal refused, [2010] S.C.C.A. No. 263, the failure of a trial judge to provide such an instruction will not always constitute a reversible error. Rather, the question for an appellate court is not "whether an O'Connor instruction would have been appropriate, but whether the instruction given prejudiced the appellant's right to a fair trial": at para. 106. The need for a reviewing court to determine whether the instruction that the trial judge did provide caused the accused prejudice has been repeatedly emphasized by this court: see R. v. Selvanayagam, 2011 ONCA 602, 281 C.C.C. (3d) 3, at paras. 30-33; R. v. Stevenson, 2014 ONCA 842, 317 C.C.C. (3d) 385, at para. 103, leave to appeal refused, [2015] S.C.C.A. No. 37; R. v. Zekarias, 2018 ONCA 585, at para. 21.

44In determining whether an accused was prejudiced by a trial judge's instruction to the jury, an appellate court must undertake a functional assessment of the charge. This point was explained by this court in R. v. Badgerow, 2019 ONCA 374, 146 O.R. (3d) 35, at paras. 17-18:

Appellate review of the adequacy of a jury instruction requires a functional assessment. The court asks whether the charge, read as a whole in the context of the specific case, properly equipped the jury to decide the case based on the application of the applicable legal principles to the evidence.

The context of the case includes the evidence, the positions of the parties, the closing arguments, the submissions of counsel in advance of the charge, and any objections taken to the charge. [Emphasis added; citations omitted]

45This court has also recognized that the failure of a trial judge to outline for the jury the circumstances supporting a finding of fabrication may inure to the benefit of the accused. This point was made in Polimac, at para. 106:

[A]n instruction that highlighted the circumstances that would support a finding of fabrication were the jury to find inaccuracies in the appellant's statements may well have only emphasized the powerful case to be made for fabrication in the circumstances of this case. [Emphasis added.]

46The risk of prejudice arising from a trier of fact's confusion of mere disbelief with affirmative evidence of guilt underscores the law in this area. However, this risk is lessened where the statement to be adduced is an out-of-court statement of the accused, as compared to the accused's in-court testimony. O'Connor A.C.J.O., writing for this court in O'Connor, described this distinction at para. 25:

When an out-of-court statement of an accused is introduced into evidence it does not have the same immediate connection to the trial itself as an accused's testimony and for that reason, even if shown to be false, it does not present the same threat that the trier of fact will confuse mere disbelief with affirmative evidence of guilt and improperly lessen the burden on the Crown.

(3) Arguments on Appeal

47The appellant makes two arguments on appeal on this issue.

48First, as the trial judge had indicated that she had found that there was no independent evidence of fabrication, she ought to have instructed the jury that the alibi, if disbelieved, had no probative value and was simply part of the narrative. The instruction that the statement was "just one piece of evidence to be considered with all the other evidence" invited the jury to draw the improper inference that the appellant's lie was indicative of a consciousness of guilt. The instruction thus invited the very mischief that was to be avoided.

49Second, if there was, in fact, independent evidence of fabrication, the instruction failed to provide the jury with the necessary tools to assess that evidence and determine whether they could find that the appellant had deliberately lied to conceal a consciousness of guilt.

50In response, the Crown argues that the circumstances in which the appellant made the statement to Detective Hill provided independent evidence of fabrication. In light of this evidence, it would have been appropriate for the trial judge to provide an instruction regarding the proper use of this evidence. However, in this case, the absence of an instruction did not cause prejudice.

(4) The Principles Applied

(a) The Circumstances of the Appellant's Statement Provide Independent Evidence of Fabrication

51To begin, I first consider whether there was independent evidence of fabrication capable of supporting an inference of the accused's consciousness of his guilt. In my view, there was. Accordingly, I conclude that the trial judge erred in determining otherwise.

52In reaching this conclusion, I consider the circumstances of the appellant's exculpatory out-of-court statement. I note that this court's description of the circumstances providing independent evidence of fabrication in O'Connor, at para. 31, are apposite:

His first statement was made the same day as the shooting and, importantly, was made to the police at a time when the police did not suspect the appellant and the appellant did not have reason to believe that he was a suspect. The police, as a matter of routine, questioned witnesses who might have information about the deceased's whereabouts prior to the shooting. The appellant's initial statement furnished a complete alibi and if true, would lead the police to conclude that he was not involved in the offence. That statement and the next two statements were very precise, both as to the appellant's whereabouts and the times he was in the various places. If the jury were to disbelieve the appellant's statements, they might fairly ask why would the appellant tell such detailed and specific lies to the investigators. Why not tell the truth? And how was it that the appellant was so well prepared with a detailed and precise statement about his whereabouts when questioned by the police? [Emphasis added.]

53I conclude that the circumstances of the appellant's statement to the police constitute independent evidence of fabrication. As in O'Connor, the appellant provided his statement to Detective Hill shortly after the shooting, at a time when he was not a suspect. The appellant's statement was detailed and precise with respect to the appellant's whereabouts and timing. The appellant volunteered this information without any prompting, and if believed, the information would deflect suspicion away from him. These circumstances, taken together, could reasonably constitute independent evidence of fabrication.

54Given the overt similarities between the circumstances arguably giving rise to independent evidence of fabrication in this case and O'Connor, I conclude that the trial judge erred in law in her understanding of what circumstances can give rise to such evidence. Applying the appropriate understanding of the law to this case, it is clear that there was evidence that arguably constituted independent evidence of fabrication. This, however, does not end the analysis.

(b) The Trial Judge's Instruction Did Not Prejudice the Appellant

55The trial judge concluded that there was no independent evidence of fabrication and should have instructed the jury that if they disbelieved the accused's evidence, they should disregard it. This did not occur. However, any resulting prejudice is lessened by the circumstances I have discussed demonstrating independent evidence of fabrication.

56As independent evidence of fabrication existed, the trial judge should have provided an instruction for the jury outlining the evidence that supported such a finding. The trial judge did not do so.

57As I have indicated, however, the question on appeal is not whether the trial judge should have given such an instruction, but whether the trial judge's failure to do so prejudiced the appellant's right to a fair trial: Polimac, at para. 106.

58I conclude that the trial judge's instruction did not prejudice the appellant. To the contrary, and similar to Polimac, the trial judge's failure to outline the independent evidence of fabrication may have inured to the appellant's benefit.

59I first consider whether the trial judge's approach to the jury instruction on this issue prejudiced the appellant. I note that, unlike in Polimac (see para. 94 of that case), defence counsel in this case asked for an O'Connor warning if the trial judge found independent evidence of fabrication. As the trial judge concluded that no such independent evidence existed, defence counsel was essentially deprived of any potential benefit of their requested instruction.

60Similarly, I note that defence counsel agreed to a specific version of the draft charge when the trial judge's proposed charge was circulated to counsel. This draft included the statement that the evidence was "part of the narrative for you to consider along with the rest of the evidence". The version that was given, however, did not include this language, instead stating that it was "one piece of evidence to be considered with all the other evidence".

61In my view, any prejudice arising from the trial judge's approach was mitigated by various factors.

62First, despite the appellant's argument on appeal that the trial judge ought to have instructed the jury that the alibi, if disbelieved, had no probative value, defence counsel at trial resiled from this position. Instead, trial defence counsel agreed to the proposed charge stating: "In all the circumstances this evidence is part of the narrative for you to consider along with the rest of the evidence."

63Furthermore, and more importantly, the trial judge's failure to outline the circumstances supporting independent evidence of fabrication may have inured to the appellant's benefit. This instruction would have focused the trier of fact's attention on the circumstances supporting a strong inference of fabrication. An instruction highlighting the circumstances supporting a finding of fabrication "may well have only emphasized the powerful case to be made for fabrication in the circumstances of this case": Polimac, at para. 106.

64Finally, I note that the trial judge's instructions to the jury otherwise equipped the jury with the tools necessary to assess the importance, or lack thereof, of the appellant's disbelieved evidence. In this respect, the trial judge instructed the jury to "keep in mind that people sometimes lie for entirely innocent reasons" when assessing the appellant's evidence that he was at the Cosmos Bar at the relevant time. The trial judge then referenced the testimony of multiple trial witnesses who were "involved in the criminal subculture", reminding the jury that "[t]hey all testified that they typically lie to the police when questioned about any matter."

65In my view, these instructions made clear to the jury that the simple presence of a lie did not necessarily give rise to a consciousness of guilt by the appellant. "While the safer course would have been to include" a more precise instruction, I "cannot say that the manner in which this issue was left with the jury undermined the appellant's right to a fair trial": Zekarias, at para. 21.

66In all the circumstances, I conclude that the trial judge's failure to provide the O'Connor instruction did not prejudice the appellant. Accordingly, I would dismiss this ground of appeal.

II. Did the trial judge err in concluding that the appellant's statements to police were voluntary and admissible?

(1) Background

67As outlined above, on August 22, 2006, three days after the discovery of Mr. Zalal's body, Detective Krista Hill was assigned to interview the appellant as part of the investigation into Mr. Zalal's death.

68That same day, the appellant contacted Detective Hill in order to retrieve his passport, which had been seized following his arrest in 2005 for an unrelated matter. The appellant left two voice mail messages. Detective Hill returned the appellant's calls, using the passport matter as an opportunity to invite the appellant to discuss the death of Mr. Zalal. While at the time, the appellant was not a suspect, he was a known associate of Mr. Zalal. Detective Hill took contemporaneous notes of the call. She testified that, while her notes were not a verbatim summary of the discussion, they covered everything that had been discussed.

69Detective Hill also testified that, although the appellant stated that he had no information to provide about Mr. Zalal's death, he provided the following information regarding his contact with Mr. Zalal on August 18, 2006:

• at about 2:00 p.m., he had picked up Mr. Zalal and two others to buy t-shirts;
• he dropped off Mr. Zalal and the others at one of their homes;
• at around 6:00 p.m., he spoke to one of the other men, at which time Mr. Zalal was still with him; and
• he was planning to meet Mr. Zalal and the others at a strip club in Gatineau, but did not end up meeting him there. Instead, he went with his wife to an exhibition and later to a bar in Québec.

70Contrary to the appellant's narrative, however, security footage from the only entrance and exit at the bar did not show the appellant or his wife in attendance. Cell tower records also showed that the appellant's cellphone did not use any of the cell towers near the bar.

71Prior to trial, the Crown brought an application to have the appellant's statement to Detective Hill admitted as voluntary: R. v. Al-Enzi, 2016 ONSC 3574 ("Voluntariness Reasons"). The Crown sought to use the statement as evidence that the appellant had deliberately lied to conceal his guilt. The appellant challenged the application, arguing, among other things, that the statement should not be admitted on the basis that it had limited probative value.

72According to the appellant, the statement served no purpose other than to memorialize the alleged falsehood that he had been at a bar in Québec on the night of August 18. Even if the statement was proven false, its falsity could not be used to further the Crown's case, as a falsehood cannot be used to support an inference that an accused deliberately lied to conceal their guilt, absent independent evidence of fabrication. In support of this proposition, the appellant referred to this court's decision in R. v. O'Connor (2002), 2002 CanLII 3540 (ON CA), 170 C.C.C. (3d) 365 (Ont. C.A.).

73The appellant argued that, while such independent evidence would potentially be available in the form of the anticipated evidence of Mr. Kayem and Mr. Abdul-Hussein (who both claimed that the appellant had murdered Mr. Zalal), acceptance of that evidence would effectively render the appellant's concoction inconsequential (as the jury would already have accepted that he murdered Mr. Zalal). The evidence thus served no purpose.

74The trial judge rejected this argument, finding that the statement was admissible, as the jury was entitled to consider the cumulative effect of all the evidence.

75It was subsequently determined, however, that the hearsay evidence of both Mr. Kayem and Mr. Abdul-Hussein – which was to serve as the independent evidence of fabrication – was inadmissible: R. v. Al-Enzi, 2016 ONSC 6911; R. v. Al-Enzi, 2016 ONSC 6972.

76As a result, there was an issue at the end of the trial as to whether there was, in fact, any independent evidence of fabrication and, consequently, how the jury should be instructed on the proper use of the appellant's alleged lie to police.

77In pre-charge discussions it was agreed that, if the trial judge found that there was independent evidence of fabrication, an instruction to the jury would be necessary to explain that an inference of consciousness of guilt could only be drawn if the independent evidence of fabrication was accepted.

78Then, during mid-charge discussions, the following exchange occurred, in which the trial judge noted her intention to find that there was no independent evidence of fabrication:

Trial judge: Well I intended to make it a prohibited use of the evidence and so maybe I've just not used the wording the way it should have been used. I have to say, it was rather tricky as the fellow said it is going to be.

Defence counsel: My – might I – I respectfully perhaps ask Your Honour is – is – is it Your Honour's meaning that there was no evidence of fabrication?

Trial judge: That's right. [Emphasis added.]

79In light of this finding, further discussion ensued regarding the specific wording of the charge to the jury. The trial judge proposed the following language:

So are you happy with in all of the circumstances of – in all the circumstances this evidence is part of the narrative for you to consider along with the rest of the evidence or do you want me to change it even more than that? [Emphasis added.]

80Defence counsel indicated that he could "live with" the instruction. Crown counsel, however, opposed the use of the word "narrative", arguing instead that it should be characterized as "part of the evidence". The trial judge noted that she would consider the Crown's submission.

81The relevant portion of the trial judge's final instruction was as follows:

It is for you to decide whether Nawaf Al-Enzi's statement to the police about being at Cosmos Bar was true or false based on all the evidence presented by the Crown.

When considering what inference, if any, to draw from the evidence of Mr. Al-Enzi's claim that he was at Cosmos Bar on the night of August 18 or early morning of August 19, 2006, keep in mind that people sometimes lie for entirely innocent reasons.

This is just one piece of evidence to be considered with all the other evidence when you decide whether the Crown has proven Mr. Al-Enzi's guilt beyond a reasonable doubt. [Emphasis added.]

(2) Governing Principles

82In Canadian law, there is a well-established distinction between an exculpatory statement by an accused that is disbelieved, and one that is determined to have been fabricated or concocted to avoid culpability: R. v. Wright, 2017 ONCA 560, 354 C.C.C. (3d) 377, at para. 38. The importance of this distinction lies in the fact that, while a statement that "is merely disbelieved is not evidence that strengthens the Crown's case", a statement that has been deliberately concocted can be capable of supporting an inference of guilt: O'Connor; at para. 38. In other words, where the Crown can prove that an accused's exculpatory statement was not simply untrue, but an intentional fabrication, the trier of fact is entitled to draw an inference that the accused lied to conceal their guilt.

83However, in order to prove an intentional fabrication, the Crown must adduce evidence of that fabrication, independent of the evidence that contradicts or discredits the exculpatory statement: Wright, at paras. 40-41; O'Connor, at paras. 21-22; R. v. Laliberté, 2016 SCC 17, [2016] 1 S.C.R. 270, at paras. 3-4. Put differently, the Crown must not only adduce evidence that disproves the exculpatory statement, but also adduce independent evidence that proves that the exculpatory statement was made for the purpose of deflecting guilt from the accused. This point was also recently made by this court in the case of R. v. Ching, 2019 ONCA 619, 378 C.C.C. (3d) 284, at para. 47, where the court stated: "Independent evidence of concoction can, however, be found in the very content of the impugned statements, depending on the context in which they were made. Independent, in this sense, means that the evidence of concoction is separate from the evidence of guilt, not necessarily separate from the statements themselves. For example, where an accused has made contradictory exculpatory statements, the self-contradiction of an accused may constitute independent evidence of fabrication: see R. v. Shafia, 2016 ONCA 812, 341 C.C.C. (3d) 354, at para. 288, leave to appeal refused, [2017] S.C.C.A. No. 17." This requirement ensures that the Crown is made to prove an accused's guilt beyond a reasonable doubt, and that mere disbelief of an accused does not automatically lead to a guilty verdict: O'Connor, at para. 20, citing R. v. Coutts (1998), 1998 CanLII 4212 (ON CA), 126 C.C.C. (3d) 545 (Ont. C.A.), at pp. 551-552, leave to appeal refused, [1998] S.C.C.A. No. 450.

84Where the exculpatory statement is made out of court, independent evidence of fabrication may emerge from the evidence of the circumstances in which the statement was made. Such evidence will necessarily be case and fact specific. Some examples of such evidence are "pre-arrest exculpatory statements that are specific and detailed" or "post-arrest statements that are inherently implausible": Wright, at para. 48.

85Where such independent evidence of fabrication exists, these principles should be made clear to the trier of fact. In particular, the following should be communicated:

1. the trier of fact may, but does not have to, disbelieve the accused's exculpatory statement;
2. if they disbelieve the statement, is there other, independent evidence upon which they may, but do not have to, find that the accused fabricated the exculpatory statement;
3. if, on the basis of the independent evidence, they do not find that the accused fabricated the statement, they must ignore the statement and treat it as if it had never been given;
4. by contrast, if they do find that the accused fabricated the statement, they may consider the reason why the accused fabricated the statement, including whether it was to conceal their involvement in the offence(s) charged. This determination must be made in light of all the evidence.

See R. v. Oland, 2016 NBCA 58, at para. 69, leave to appeal refused, [2016] S.C.C.A. No. 188; D. Watt, Watt's Manual of Criminal Jury Instructions, 2nd ed. (Toronto: Thomson/Carswell, 2015).

86Where an instruction regarding fabrication is provided, a trial judge should "carefully outline what evidence is capable of constituting independent evidence of fabrication": O'Connor, at para. 38; R. v. Clause, 2016 ONCA 859, 133 O.R. (3d) 321, at para. 62.

87However, as noted in R. v. Polimac, 2010 ONCA 346, 254 C.C.C. (3d) 359, leave to appeal refused, [2010] S.C.C.A. No. 263, the failure of a trial judge to provide such an instruction will not always constitute a reversible error. Rather, the question for an appellate court is not "whether an O'Connor instruction would have been appropriate, but whether the instruction given prejudiced the appellant's right to a fair trial": at para. 106. The need for a reviewing court to determine whether the instruction that the trial judge did provide caused the accused prejudice has been repeatedly emphasized by this court: see R. v. Selvanayagam, 2011 ONCA 602, 281 C.C.C. (3d) 3, at paras. 30-33; R. v. Stevenson, 2014 ONCA 842, 317 C.C.C. (3d) 385, at para. 103, leave to appeal refused, [2015] S.C.C.A. No. 37; R. v. Zekarias, 2018 ONCA 585, at para. 21.

88In determining whether an accused was prejudiced by a trial judge's instruction to the jury, an appellate court must undertake a functional assessment of the charge. This point was explained by this court in R. v. Badgerow, 2019 ONCA 374, 146 O.R. (3d) 35, at paras. 17-18:

Appellate review of the adequacy of a jury instruction requires a functional assessment. The court asks whether the charge, read as a whole in the context of the specific case, properly equipped the jury to decide the case based on the application of the applicable legal principles to the evidence.

The context of the case includes the evidence, the positions of the parties, the closing arguments, the submissions of counsel in advance of the charge, and any objections taken to the charge. [Emphasis added; citations omitted]

89This court has also recognized that the failure of a trial judge to outline for the jury the circumstances supporting a finding of fabrication may inure to the benefit of the accused. This point was made in Polimac, at para. 106:

[A]n instruction that highlighted the circumstances that would support a finding of fabrication were the jury to find inaccuracies in the appellant's statements may well have only emphasized the powerful case to be made for fabrication in the circumstances of this case. [Emphasis added.]

90The risk of prejudice arising from a trier of fact's confusion of mere disbelief with affirmative evidence of guilt underscores the law in this area. However, this risk is lessened where the statement to be adduced is an out-of-court statement of the accused, as compared to the accused's in-court testimony. O'Connor A.C.J.O., writing for this court in O'Connor, described this distinction at para. 25:

When an out-of-court statement of an accused is introduced into evidence it does not have the same immediate connection to the trial itself as an accused's testimony and for that reason, even if shown to be false, it does not present the same threat that the trier of fact will confuse mere disbelief with affirmative evidence of guilt and improperly lessen the burden on the Crown.

(3) Arguments on Appeal

91The appellant makes two arguments on appeal on this issue.

92First, as the trial judge had indicated that she had found that there was no independent evidence of fabrication, she ought to have instructed the jury that the alibi, if disbelieved, had no probative value and was simply part of the narrative. The instruction that the statement was "just one piece of evidence to be considered with all the other evidence" invited the jury to draw the improper inference that the appellant's lie was indicative of a consciousness of guilt. The instruction thus invited the very mischief that was to be avoided.

93Second, if there was, in fact, independent evidence of fabrication, the instruction failed to provide the jury with the necessary tools to assess that evidence and determine whether they could find that the appellant had deliberately lied to conceal a consciousness of guilt.

94In response, the Crown argues that the circumstances in which the appellant made the statement to Detective Hill provided independent evidence of fabrication. In light of this evidence, it would have been appropriate for the trial judge to provide an instruction regarding the proper use of this evidence. However, in this case, the absence of an instruction did not cause prejudice.

(4) The Principles Applied

(a) The Circumstances of the Appellant's Statement Provide Independent Evidence of Fabrication

95To begin, I first consider whether there was independent evidence of fabrication capable of supporting an inference of the accused's consciousness of his guilt. In my view, there was. Accordingly, I conclude that the trial judge erred in determining otherwise.

96In reaching this conclusion, I consider the circumstances of the appellant's exculpatory out-of-court statement. I note that this court's description of the circumstances providing independent evidence of fabrication in O'Connor, at para. 31, are apposite:

His first statement was made the same day as the shooting and, importantly, was made to the police at a time when the police did not suspect the appellant and the appellant did not have reason to believe that he was a suspect. The police, as a matter of routine, questioned witnesses who might have information about the deceased's whereabouts prior to the shooting. The appellant's initial statement furnished a complete alibi and if true, would lead the police to conclude that he was not involved in the offence. That statement and the next two statements were very precise, both as to the appellant's whereabouts and the times he was in the various places. If the jury were to disbelieve the appellant's statements, they might fairly ask why would the appellant tell such detailed and specific lies to the investigators. Why not tell the truth? And how was it that the appellant was so well prepared with a detailed and precise statement about his whereabouts when questioned by the police? [Emphasis added.]

97I conclude that the circumstances of the appellant's statement to the police constitute independent evidence of fabrication. As in O'Connor, the appellant provided his statement to Detective Hill shortly after the shooting, at a time when he was not a suspect. The appellant's statement was detailed and precise with respect to the appellant's whereabouts and timing. The appellant volunteered this information without any prompting, and if believed, the information would deflect suspicion away from him. These circumstances, taken together, could reasonably constitute independent evidence of fabrication.

98Given the overt similarities between the circumstances arguably giving rise to independent evidence of fabrication in this case and O'Connor, I conclude that the trial judge erred in law in her understanding of what circumstances can give rise to such evidence. Applying the appropriate understanding of the law to this case, it is clear that there was evidence that arguably constituted independent evidence of fabrication. This, however, does not end the analysis.

(b) The Trial Judge's Instruction Did Not Prejudice the Appellant

99The trial judge concluded that there was no independent evidence of fabrication and should have instructed the jury that if they disbelieved the accused's evidence, they should disregard it. This did not occur. However, any resulting prejudice is lessened by the circumstances I have discussed demonstrating independent evidence of fabrication.

100As independent evidence of fabrication existed, the trial judge should have provided an instruction for the jury outlining the evidence that supported such a finding. The trial judge did not do so.

101As I have indicated, however, the question on appeal is not whether the trial judge should have given such an instruction, but whether the trial judge's failure to do so prejudiced the appellant's right to a fair trial: Polimac, at para. 106.

102I conclude that the trial judge's instruction did not prejudice the appellant. To the contrary, and similar to Polimac, the trial judge's failure to outline the independent evidence of fabrication may have inured to the appellant's benefit.

103I first consider whether the trial judge's approach to the jury instruction on this issue prejudiced the appellant. I note that, unlike in Polimac (see para. 94 of that case), defence counsel in this case asked for an O'Connor warning if the trial judge found independent evidence of fabrication. As the trial judge concluded that no such independent evidence existed, defence counsel was essentially deprived of any potential benefit of their requested instruction.

104Similarly, I note that defence counsel agreed to a specific version of the draft charge when the trial judge's proposed charge was circulated to counsel. This draft included the statement that the evidence was "part of the narrative for you to consider along with the rest of the evidence". The version that was given, however, did not include this language, instead stating that it was "one piece of evidence to be considered with all the other evidence".

105In my view, any prejudice arising from the trial judge's approach was mitigated by various factors.

106First, despite the appellant's argument on appeal that the trial judge ought to have instructed the jury that the alibi, if disbelieved, had no probative value, defence counsel at trial resiled from this position. Instead, trial defence counsel agreed to the proposed charge stating: "In all the circumstances this evidence is part of the narrative for you to consider along with the rest of the evidence."

107Furthermore, and more importantly, the trial judge's failure to outline the circumstances supporting independent evidence of fabrication may have inured to the appellant's benefit. This instruction would have focused the trier of fact's attention on the circumstances supporting a strong inference of fabrication. An instruction highlighting the circumstances supporting a finding of fabrication "may well have only emphasized the powerful case to be made for fabrication in the circumstances of this case": Polimac, at para. 106.

108Finally, I note that the trial judge's instructions to the jury otherwise equipped the jury with the tools necessary to assess the importance, or lack thereof, of the appellant's disbelieved evidence. In this respect, the trial judge instructed the jury to "keep in mind that people sometimes lie for entirely innocent reasons" when assessing the appellant's evidence that he was at the Cosmos Bar at the relevant time. The trial judge then referenced the testimony of multiple trial witnesses who were "involved in the criminal subculture", reminding the jury that "[t]hey all testified that they typically lie to the police when questioned about any matter."

109In my view, these instructions made clear to the jury that the simple presence of a lie did not necessarily give rise to a consciousness of guilt by the appellant. "While the safer course would have been to include" a more precise instruction, I "cannot say that the manner in which this issue was left with the jury undermined the appellant's right to a fair trial": Zekarias, at para. 21.

110In all the circumstances, I conclude that the trial judge's failure to provide the O'Connor instruction did not prejudice the appellant. Accordingly, I would dismiss this ground of appeal.

II. Did the trial judge err in concluding that the appellant's statements to police were voluntary and admissible?

(1) Background

111As outlined above, on August 22, 2006, three days after the discovery of Mr. Zalal's body, Detective Krista Hill was assigned to interview the appellant as part of the investigation into Mr. Zalal's death.

112That same day, the appellant contacted Detective Hill in order to retrieve his passport, which had been seized following his arrest in 2005 for an unrelated matter. The appellant left two voice mail messages. Detective Hill returned the appellant's calls, using the passport matter as an opportunity to invite the appellant to discuss the death of Mr. Zalal. While at the time, the appellant was not a suspect, he was a known associate of Mr. Zalal. Detective Hill took contemporaneous notes of the call. She testified that, while her notes were not a verbatim summary of the discussion, they covered everything that had been discussed.

113Detective Hill also testified that, although the appellant stated that he had no information to provide about Mr. Zalal's death, he provided the following information regarding his contact with Mr. Zalal on August 18, 2006:

• at about 2:00 p.m., he had picked up Mr. Zalal and two others to buy t-shirts;
• he dropped off Mr. Zalal and the others at one of their homes;
• at around 6:00 p.m., he spoke to one of the other men, at which time Mr. Zalal was still with him; and
• he was planning to meet Mr. Zalal and the others at a strip club in Gatineau, but did not end up meeting him there. Instead, he went with his wife to an exhibition and later to a bar in Québec.

114Contrary to the appellant's narrative, however, security footage from the only entrance and exit at the bar did not show the appellant or his wife in attendance. Cell tower records also showed that the appellant's cellphone did not use any of the cell towers near the bar.

115Prior to trial, the Crown brought an application to have the appellant's statement to Detective Hill admitted as voluntary: R. v. Al-Enzi, 2016 ONSC 3574 ("Voluntariness Reasons"). The Crown sought to use the statement as evidence that the appellant had deliberately lied to conceal his guilt. The appellant challenged the application, arguing, among other things, that the statement should not be admitted on the basis that it had limited probative value.

116According to the appellant, the statement served no purpose other than to memorialize the alleged falsehood that he had been at a bar in Québec on the night of August 18. Even if the statement was proven false, its falsity could not be used to further the Crown's case, as a falsehood cannot be used to support an inference that an accused deliberately lied to conceal their guilt, absent independent evidence of fabrication. In support of this proposition, the appellant referred to this court's decision in R. v. O'Connor (2002), 2002 CanLII 3540 (ON CA), 170 C.C.C. (3d) 365 (Ont. C.A.).

117The appellant argued that, while such independent evidence would potentially be available in the form of the anticipated evidence of Mr. Kayem and Mr. Abdul-Hussein (who both claimed that the appellant had murdered Mr. Zalal), acceptance of that evidence would effectively render the appellant's concoction inconsequential (as the jury would already have accepted that he murdered Mr. Zalal). The evidence thus served no purpose.

118The trial judge rejected this argument, finding that the statement was admissible, as the jury was entitled to consider the cumulative effect of all the evidence.

119It was subsequently determined, however, that the hearsay evidence of both Mr. Kayem and Mr. Abdul-Hussein – which was to serve as the independent evidence of fabrication – was inadmissible: R. v. Al-Enzi, 2016 ONSC 6911; R. v. Al-Enzi, 2016 ONSC 6972.

120As a result, there was an issue at the end of the trial as to whether there was, in fact, any independent evidence of fabrication and, consequently, how the jury should be instructed on the proper use of the appellant's alleged lie to police.

121In pre-charge discussions it was agreed that, if the trial judge found that there was independent evidence of fabrication, an instruction to the jury would be necessary to explain that an inference of consciousness of guilt could only be drawn if the independent evidence of fabrication was accepted.

122Then, during mid-charge discussions, the following exchange occurred, in which the trial judge noted her intention to find that there was no independent evidence of fabrication:

Trial judge: Well I intended to make it a prohibited use of the evidence and so maybe I've just not used the wording the way it should have been used. I have to say, it was rather tricky as the fellow said it is going to be.

Defence counsel: My – might I – I respectfully perhaps ask Your Honour is – is – is it Your Honour's meaning that there was no evidence of fabrication?

Trial judge: That's right. [Emphasis added.]

123In light of this finding, further discussion ensued regarding the specific wording of the charge to the jury. The trial judge proposed the following language:

So are you happy with in all of the circumstances of – in all the circumstances this evidence is part of the narrative for you to consider along with the rest of the evidence or do you want me to change it even more than that? [Emphasis added.]

124Defence counsel indicated that he could "live with" the instruction. Crown counsel, however, opposed the use of the word "narrative", arguing instead that it should be characterized as "part of the evidence". The trial judge noted that she would consider the Crown's submission.

125The relevant portion of the trial judge's final instruction was as follows:

It is for you to decide whether Nawaf Al-Enzi's statement to the police about being at Cosmos Bar was true or false based on all the evidence presented by the Crown.

When considering what inference, if any, to draw from the evidence of Mr. Al-Enzi's claim that he was at Cosmos Bar on the night of August 18 or early morning of August 19, 2006, keep in mind that people sometimes lie for entirely innocent reasons.

This is just one piece of evidence to be considered with all the other evidence when you decide whether the Crown has proven Mr. Al-Enzi's guilt beyond a reasonable doubt. [Emphasis added.]

(2) Governing Principles

126In Canadian law, there is a well-established distinction between an exculpatory statement by an accused that is disbelieved, and one that is determined to have been fabricated or concocted to avoid culpability: R. v. Wright, 2017 ONCA 560, 354 C.C.C. (3d) 377, at para. 38. The importance of this distinction lies in the fact that, while a statement that "is merely disbelieved is not evidence that strengthens the Crown's case", a statement that has been deliberately concocted can be capable of supporting an inference of guilt: O'Connor; at para. 38. In other words, where the Crown can prove that an accused's exculpatory statement was not simply untrue, but an intentional fabrication, the trier of fact is entitled to draw an inference that the accused lied to conceal their guilt.

127However, in order to prove an intentional fabrication, the Crown must adduce evidence of that fabrication, independent of the evidence that contradicts or discredits the exculpatory statement: Wright, at paras. 40-41; O'Connor, at paras. 21-22; R. v. Laliberté, 2016 SCC 17, [2016] 1 S.C.R. 270, at paras. 3-4. Put differently, the Crown must not only adduce evidence that disproves the exculpatory statement, but also adduce independent evidence that proves that the exculpatory statement was made for the purpose of deflecting guilt from the accused. This point was also recently made by this court in the case of R. v. Ching, 2019 ONCA 619, 378 C.C.C. (3d) 284, at para. 47, where the court stated: "Independent evidence of concoction can, however, be found in the very content of the impugned statements, depending on the context in which they were made. Independent, in this sense, means that the evidence of concoction is separate from the evidence of guilt, not necessarily separate from the statements themselves. For example, where an accused has made contradictory exculpatory statements, the self-contradiction of an accused may constitute independent evidence of fabrication: see R. v. Shafia, 2016 ONCA 812, 341 C.C.C. (3d) 354, at para. 288, leave to appeal refused, [2017] S.C.C.A. No. 17." This requirement ensures that the Crown is made to prove an accused's guilt beyond a reasonable doubt, and that mere disbelief of an accused does not automatically lead to a guilty verdict: O'Connor, at para. 20, citing R. v. Coutts (1998), 1998 CanLII 4212 (ON CA), 126 C.C.C. (3d) 545 (Ont. C.A.), at pp. 551-552, leave to appeal refused, [1998] S.C.C.A. No. 450.

128Where the exculpatory statement is made out of court, independent evidence of fabrication may emerge from the evidence of the circumstances in which the statement was made. Such evidence will necessarily be case and fact specific. Some examples of such evidence are "pre-arrest exculpatory statements that are specific and detailed" or "post-arrest statements that are inherently implausible": Wright, at para. 48.

129Where such independent evidence of fabrication exists, these principles should be made clear to the trier of fact. In particular, the following should be communicated:

1. the trier of fact may, but does not have to, disbelieve the accused's exculpatory statement;
2. if they disbelieve the statement, is there other, independent evidence upon which they may, but do not have to, find that the accused fabricated the exculpatory statement;
3. if, on the basis of the independent evidence, they do not find that the accused fabricated the statement, they must ignore the statement and treat it as if it had never been given;
4. by contrast, if they do find that the accused fabricated the statement, they may consider the reason why the accused fabricated the statement, including whether it was to conceal their involvement in the offence(s) charged. This determination must be made in light of all the evidence.

See R. v. Oland, 2016 NBCA 58, at para. 69, leave to appeal refused, [2016] S.C.C.A. No. 188; D. Watt, Watt's Manual of Criminal Jury Instructions, 2nd ed. (Toronto: Thomson/Carswell, 2015).

130Where an instruction regarding fabrication is provided, a trial judge should "carefully outline what evidence is capable of constituting independent evidence of fabrication": O'Connor, at para. 38; R. v. Clause, 2016 ONCA 859, 133 O.R. (3d) 321, at para. 62.

131However, as noted in R. v. Polimac, 2010 ONCA 346, 254 C.C.C. (3d) 359, leave to appeal refused, [2010] S.C.C.A. No. 263, the failure of a trial judge to provide such an instruction will not always constitute a reversible error. Rather, the question for an appellate court is not "whether an O'Connor instruction would have been appropriate, but whether the instruction given prejudiced the appellant's right to a fair trial": at para. 106. The need for a reviewing court to determine whether the instruction that the trial judge did provide caused the accused prejudice has been repeatedly emphasized by this court: see R. v. Selvanayagam, 2011 ONCA 602, 281 C.C.C. (3d) 3, at paras. 30-33; R. v. Stevenson, 2014 ONCA 842, 317 C.C.C. (3d) 385, at para. 103, leave to appeal refused, [2015] S.C.C.A. No. 37; R. v. Zekarias, 2018 ONCA 585, at para. 21.

132In determining whether an accused was prejudiced by a trial judge's instruction to the jury, an appellate court must undertake a functional assessment of the charge. This point was explained by this court in R. v. Badgerow, 2019 ONCA 374, 146 O.R. (3d) 35, at paras. 17-18:

Appellate review of the adequacy of a jury instruction requires a functional assessment. The court asks whether the charge, read as a whole in the context of the specific case, properly equipped the jury to decide the case based on the application of the applicable legal principles to the evidence.

The context of the case includes the evidence, the positions of the parties, the closing arguments, the submissions of counsel in advance of the charge, and any objections taken to the charge. [Emphasis added; citations omitted]

133This court has also recognized that the failure of a trial judge to outline for the jury the circumstances supporting a finding of fabrication may inure to the benefit of the accused. This point was made in Polimac, at para. 106:

[A]n instruction that highlighted the circumstances that would support a finding of fabrication were the jury to find inaccuracies in the appellant's statements may well have only emphasized the powerful case to be made for fabrication in the circumstances of this case. [Emphasis added.]

134The risk of prejudice arising from a trier of fact's confusion of mere disbelief with affirmative evidence of guilt underscores the law in this area. However, this risk is lessened where the statement to be adduced is an out-of-court statement of the accused, as compared to the accused's in-court testimony. O'Connor A.C.J.O., writing for this court in O'Connor, described this distinction at para. 25:

When an out-of-court statement of an accused is introduced into evidence it does not have the same immediate connection to the trial itself as an accused's testimony and for that reason, even if shown to be false, it does not present the same threat that the trier of fact will confuse mere disbelief with affirmative evidence of guilt and improperly lessen the burden on the Crown.

(3) Arguments on Appeal

135The appellant makes two arguments on appeal on this issue.

136First, as the trial judge had indicated that she had found that there was no independent evidence of fabrication, she ought to have instructed the jury that the alibi, if disbelieved, had no probative value and was simply part of the narrative. The instruction that the statement was "just one piece of evidence to be considered with all the other evidence" invited the jury to draw the improper inference that the appellant's lie was indicative of a consciousness of guilt. The instruction thus invited the very mischief that was to be avoided.

137Second, if there was, in fact, independent evidence of fabrication, the instruction failed to provide the jury with the necessary tools to assess that evidence and determine whether they could find that the appellant had deliberately lied to conceal a consciousness of guilt.

138In response, the Crown argues that the circumstances in which the appellant made the statement to Detective Hill provided independent evidence of fabrication. In light of this evidence, it would have been appropriate for the trial judge to provide an instruction regarding the proper use of this evidence. However, in this case, the absence of an instruction did not cause prejudice.

(4) The Principles Applied

(a) The Circumstances of the Appellant's Statement Provide Independent Evidence of Fabrication

139To begin, I first consider whether there was independent evidence of fabrication capable of supporting an inference of the accused's consciousness of his guilt. In my view, there was. Accordingly, I conclude that the trial judge erred in determining otherwise.

140In reaching this conclusion, I consider the circumstances of the appellant's exculpatory out-of-court statement. I note that this court's description of the circumstances providing independent evidence of fabrication in O'Connor, at para. 31, are apposite:

His first statement was made the same day as the shooting and, importantly, was made to the police at a time when the police did not suspect the appellant and the appellant did not have reason to believe that he was a suspect. The police, as a matter of routine, questioned witnesses who might have information about the deceased's whereabouts prior to the shooting. The appellant's initial statement furnished a complete alibi and if true, would lead the police to conclude that he was not involved in the offence. That statement and the next two statements were very precise, both as to the appellant's whereabouts and the times he was in the various places. If the jury were to disbelieve the appellant's statements, they might fairly ask why would the appellant tell such detailed and specific lies to the investigators. Why not tell the truth? And how was it that the appellant was so well prepared with a detailed and precise statement about his whereabouts when questioned by the police? [Emphasis added.]

141I conclude that the circumstances of the appellant's statement to the police constitute independent evidence of fabrication. As in O'Connor, the appellant provided his statement to Detective Hill shortly after the shooting, at a time when he was not a suspect. The appellant's statement was detailed and precise with respect to the appellant's whereabouts and timing. The appellant volunteered this information without any prompting, and if believed, the information would deflect suspicion away from him. These circumstances, taken together, could reasonably constitute independent evidence of fabrication.

142Given the overt similarities between the circumstances arguably giving rise to independent evidence of fabrication in this case and O'Connor, I conclude that the trial judge erred in law in her understanding of what circumstances can give rise to such evidence. Applying the appropriate understanding of the law to this case, it is clear that there was evidence that arguably constituted independent evidence of fabrication. This, however, does not end the analysis.

(b) The Trial Judge's Instruction Did Not Prejudice the Appellant

143The trial judge concluded that there was no independent evidence of fabrication and should have instructed the jury that if they disbelieved the accused's evidence, they should disregard it. This did not occur. However, any resulting prejudice is lessened by the circumstances I have discussed demonstrating independent evidence of fabrication.

144As independent evidence of fabrication existed, the trial judge should have provided an instruction for the jury outlining the evidence that supported such a finding. The trial judge did not do so.

145As I have indicated, however, the question on appeal is not whether the trial judge should have given such an instruction, but whether the trial judge's failure to do so prejudiced the appellant's right to a fair trial: Polimac, at para. 106.

146I conclude that the trial judge's instruction did not prejudice the appellant. To the contrary, and similar to Polimac, the trial judge's failure to outline the independent evidence of fabrication may have inured to the appellant's benefit.

147I first consider whether the trial judge's approach to the jury instruction on this issue prejudiced the appellant. I note that, unlike in Polimac (see para. 94 of that case), defence counsel in this case asked for an O'Connor warning if the trial judge found independent evidence of fabrication. As the trial judge concluded that no such independent evidence existed, defence counsel was essentially deprived of any potential benefit of their requested instruction.

148Similarly, I note that defence counsel agreed to a specific version of the draft charge when the trial judge's proposed charge was circulated to counsel. This draft included the statement that the evidence was "part of the narrative for you to consider along with the rest of the evidence". The version that was given, however, did not include this language, instead stating that it was "one piece of evidence to be considered with all the other evidence".

149In my view, any prejudice arising from the trial judge's approach was mitigated by various factors.

150First, despite the appellant's argument on appeal that the trial judge ought to have instructed the jury that the alibi, if disbelieved, had no probative value, defence counsel at trial resiled from this position. Instead, trial defence counsel agreed to the proposed charge stating: "In all the circumstances this evidence is part of the narrative for you to consider along with the rest of the evidence."

151Furthermore, and more importantly, the trial judge's failure to outline the circumstances supporting independent evidence of fabrication may have inured to the appellant's benefit. This instruction would have focused the trier of fact's attention on the circumstances supporting a strong inference of fabrication. An instruction highlighting the circumstances supporting a finding of fabrication "may well have only emphasized the powerful case to be made for fabrication in the circumstances of this case": Polimac, at para. 106.

152Finally, I note that the trial judge's instructions to the jury otherwise equipped the jury with the tools necessary to assess the importance, or lack thereof, of the appellant's disbelieved evidence. In this respect, the trial judge instructed the jury to "keep in mind that people sometimes lie for entirely innocent reasons" when assessing the appellant's evidence that he was at the Cosmos Bar at the relevant time. The trial judge then referenced the testimony of multiple trial witnesses who were "involved in the criminal subculture", reminding the jury that "[t]hey all testified that they typically lie to the police when questioned about any matter."

153In my view, these instructions made clear to the jury that the simple presence of a lie did not necessarily give rise to a consciousness of guilt by the appellant. "While the safer course would have been to include" a more precise instruction, I "cannot say that the manner in which this issue was left with the jury undermined the appellant's right to a fair trial": Zekarias, at para. 21.

154In all the circumstances, I conclude that the trial judge's failure to provide the O'Connor instruction did not prejudice the appellant. Accordingly, I would dismiss this ground of appeal.

II. Did the trial judge err in concluding that the appellant's statements to police were voluntary and admissible?

(1) Background

155As outlined above, on August 22, 2006, three days after the discovery of Mr. Zalal's body, Detective Krista Hill was assigned to interview the appellant as part of the investigation into Mr. Zalal's death.

156That same day, the appellant contacted Detective Hill in order to retrieve his passport, which had been seized following his arrest in 2005 for an unrelated matter. The appellant left two voice mail messages. Detective Hill returned the appellant's calls, using the passport matter as an opportunity to invite the appellant to discuss the death of Mr. Zalal. While at the time, the appellant was not a suspect, he was a known associate of Mr. Zalal. Detective Hill took contemporaneous notes of the call. She testified that, while her notes were not a verbatim summary of the discussion, they covered everything that had been discussed.

157Detective Hill also testified that, although the appellant stated that he had no information to provide about Mr. Zalal's death, he provided the following information regarding his contact with Mr. Zalal on August 18, 2006:

• at about 2:00 p.m., he had picked up Mr. Zalal and two others to buy t-shirts;
• he dropped off Mr. Zalal and the others at one of their homes;
• at around 6:00 p.m., he spoke to one of the other men, at which time Mr. Zalal was still with him; and
• he was planning to meet Mr. Zalal and the others at a strip club in Gatineau, but did not end up meeting him there. Instead, he went with his wife to an exhibition and later to a bar in Québec.

158Contrary to the appellant's narrative, however, security footage from the only entrance and exit at the bar did not show the appellant or his wife in attendance. Cell tower records also showed that the appellant's cellphone did not use any of the cell towers near the bar.

159Prior to trial, the Crown brought an application to have the appellant's statement to Detective Hill admitted as voluntary: R. v. Al-Enzi, 2016 ONSC 3574 ("Voluntariness Reasons"). The Crown sought to use the statement as evidence that the appellant had deliberately lied to conceal his guilt. The appellant challenged the application, arguing, among other things, that the statement should not be admitted on the basis that it had limited probative value.

160According to the appellant, the statement served no purpose other than to memorialize the alleged falsehood that he had been at a bar in Québec on the night of August 18. Even if the statement was proven false, its falsity could not be used to further the Crown's case, as a falsehood cannot be used to support an inference that an accused deliberately lied to conceal their guilt, absent independent evidence of fabrication. In support of this proposition, the appellant referred to this court's decision in R. v. O'Connor (2002), 2002 CanLII 3540 (ON CA), 170 C.C.C. (3d) 365 (Ont. C.A.).

161The appellant argued that, while such independent evidence would potentially be available in the form of the anticipated evidence of Mr. Kayem and Mr. Abdul-Hussein (who both claimed that the appellant had murdered Mr. Zalal), acceptance of that evidence would effectively render the appellant's concoction inconsequential (as the jury would already have accepted that he murdered Mr. Zalal). The evidence thus served no purpose.

162The trial judge rejected this argument, finding that the statement was admissible, as the jury was entitled to consider the cumulative effect of all the evidence.

163It was subsequently determined, however, that the hearsay evidence of both Mr. Kayem and Mr. Abdul-Hussein – which was to serve as the independent evidence of fabrication – was inadmissible: R. v. Al-Enzi, 2016 ONSC 6911; R. v. Al-Enzi, 2016 ONSC 6972.

164As a result, there was an issue at the end of the trial as to whether there was, in fact, any independent evidence of fabrication and, consequently, how the jury should be instructed on the proper use of the appellant's alleged lie to police.

165In pre-charge discussions it was agreed that, if the trial judge found that there was independent evidence of fabrication, an instruction to the jury would be necessary to explain that an inference of consciousness of guilt could only be drawn if the independent evidence of fabrication was accepted.

166Then, during mid-charge discussions, the following exchange occurred, in which the trial judge noted her intention to find that there was no independent evidence of fabrication:

Trial judge: Well I intended to make it a prohibited use of the evidence and so maybe I've just not used the wording the way it should have been used. I have to say, it was rather tricky as the fellow said it is going to be.

Defence counsel: My – might I – I respectfully perhaps ask Your Honour is – is – is it Your Honour's meaning that there was no evidence of fabrication?

Trial judge: That's right. [Emphasis added.]

167In light of this finding, further discussion ensued regarding the specific wording of the charge to the jury. The trial judge proposed the following language:

So are you happy with in all of the circumstances of – in all the circumstances this evidence is part of the narrative for you to consider along with the rest of the evidence or do you want me to change it even more than that? [Emphasis added.]

168Defence counsel indicated that he could "live with" the instruction. Crown counsel, however, opposed the use of the word "narrative", arguing instead that it should be characterized as "part of the evidence". The trial judge noted that she would consider the Crown's submission.

169The relevant portion of the trial judge's final instruction was as follows:

It is for you to decide whether Nawaf Al-Enzi's statement to the police about being at Cosmos Bar was true or false based on all the evidence presented by the Crown.

When considering what inference, if any, to draw from the evidence of Mr. Al-Enzi's claim that he was at Cosmos Bar on the night of August 18 or early morning of August 19, 2006, keep in mind that people sometimes lie for entirely innocent reasons.

This is just one piece of evidence to be considered with all the other evidence when you decide whether the Crown has proven Mr. Al-Enzi's guilt beyond a reasonable doubt. [Emphasis added.]

(2) Governing Principles

170In Canadian law, there is a well-established distinction between an exculpatory statement by an accused that is disbelieved, and one that is determined to have been fabricated or concocted to avoid culpability: R. v. Wright, 2017 ONCA 560, 354 C.C.C. (3d) 377, at para. 38. The importance of this distinction lies in the fact that, while a statement that "is merely disbelieved is not evidence that strengthens the Crown's case", a statement that has been deliberately concocted can be capable of supporting an inference of guilt: O'Connor; at para. 38. In other words, where the Crown can prove that an accused's exculpatory statement was not simply untrue, but an intentional fabrication, the trier of fact is entitled to draw an inference that the accused lied to conceal their guilt.

171However, in order to prove an intentional fabrication, the Crown must adduce evidence of that fabrication, independent of the evidence that contradicts or discredits the exculpatory statement: Wright, at paras. 40-41; O'Connor, at paras. 21-22; R. v. Laliberté, 2016 SCC 17, [2016] 1 S.C.R. 270, at paras. 3-4. Put differently, the Crown must not only adduce evidence that disproves the exculpatory statement, but also adduce independent evidence that proves that the exculpatory statement was made for the purpose of deflecting guilt from the accused. This point was also recently made by this court in the case of R. v. Ching, 2019 ONCA 619, 378 C.C.C. (3d) 284, at para. 47, where the court stated: "Independent evidence of concoction can, however, be found in the very content of the impugned statements, depending on the context in which they were made. Independent, in this sense, means that the evidence of concoction is separate from the evidence of guilt, not necessarily separate from the statements themselves. For example, where an accused has made contradictory exculpatory statements, the self-contradiction of an accused may constitute independent evidence of fabrication: see R. v. Shafia, 2016 ONCA 812, 341 C.C.C. (3d) 354, at para. 288, leave to appeal refused, [2017] S.C.C.A. No. 17." This requirement ensures that the Crown is made to prove an accused's guilt beyond a reasonable doubt, and that mere disbelief of an accused does not automatically lead to a guilty verdict: O'Connor, at para. 20, citing R. v. Coutts (1998), 1998 CanLII 4212 (ON CA), 126 C.C.C. (3d) 545 (Ont. C.A.), at pp. 551-552, leave to appeal refused, [1998] S.C.C.A. No. 450.

172Where the exculpatory statement is made out of court, independent evidence of fabrication may emerge from the evidence of the circumstances in which the statement was made. Such evidence will necessarily be case and fact specific. Some examples of such evidence are "pre-arrest exculpatory statements that are specific and detailed" or "post-arrest statements that are inherently implausible": Wright, at para. 48.

173Where such independent evidence of fabrication exists, these principles should be made clear to the trier of fact. In particular, the following should be communicated:

1. the trier of fact may, but does not have to, disbelieve the accused's exculpatory statement;
2. if they disbelieve the statement, is there other, independent evidence upon which they may, but do not have to, find that the accused fabricated the exculpatory statement;
3. if, on the basis of the independent evidence, they do not find that the accused fabricated the statement, they must ignore the statement and treat it as if it had never been given;
4. by contrast, if they do find that the accused fabricated the statement, they may consider the reason why the accused fabricated the statement, including whether it was to conceal their involvement in the offence(s) charged. This determination must be made in light of all the evidence.

See R. v. Oland, 2016 NBCA 58, at para. 69, leave to appeal refused, [2016] S.C.C.A. No. 188; D. Watt, Watt's Manual of Criminal Jury Instructions, 2nd ed. (Toronto: Thomson/Carswell, 2015).

174Where an instruction regarding fabrication is provided, a trial judge should "carefully outline what evidence is capable of constituting independent evidence of fabrication": O'Connor, at para. 38; R. v. Clause, 2016 ONCA 859, 133 O.R. (3d) 321, at para. 62.

175However, as noted in R. v. Polimac, 2010 ONCA 346, 254 C.C.C. (3d) 359, leave to appeal refused, [2010] S.C.C.A. No. 263, the failure of a trial judge to provide such an instruction will not always constitute a reversible error. Rather, the question for an appellate court is not "whether an O'Connor instruction would have been appropriate, but whether the instruction given prejudiced the appellant's right to a fair trial": at para. 106. The need for a reviewing court to determine whether the instruction that the trial judge did provide caused the accused prejudice has been repeatedly emphasized by this court: see R. v. Selvanayagam, 2011 ONCA 602, 281 C.C.C. (3d) 3, at paras. 30-33; R. v. Stevenson, 2014 ONCA 842, 317 C.C.C. (3d) 385, at para. 103, leave to appeal refused, [2015] S.C.C.A. No. 37; R. v. Zekarias, 2018 ONCA 585, at para. 21.

176In determining whether an accused was prejudiced by a trial judge's instruction to the jury, an appellate court must undertake a functional assessment of the charge. This point was explained by this court in R. v. Badgerow, 2019 ONCA 374, 146 O.R. (3d) 35, at paras. 17-18:

Appellate review of the adequacy of a jury instruction requires a functional assessment. The court asks whether the charge, read as a whole in the context of the specific case, properly equipped the jury to decide the case based on the application of the applicable legal principles to the evidence.

The context of the case includes the evidence, the positions of the parties, the closing arguments, the submissions of counsel in advance of the charge, and any objections taken to the charge. [Emphasis added; citations omitted]

177This court has also recognized that the failure of a trial judge to outline for the jury the circumstances supporting a finding of fabrication may inure to the benefit of the accused. This point was made in Polimac, at para. 106:

[A]n instruction that highlighted the circumstances that would support a finding of fabrication were the jury to find inaccuracies in the appellant's statements may well have only emphasized the powerful case to be made for fabrication in the circumstances of this case. [Emphasis added.]

178The risk of prejudice arising from a trier of fact's confusion of mere disbelief with affirmative evidence of guilt underscores the law in this area. However, this risk is lessened where the statement to be adduced is an out-of-court statement of the accused, as compared to the accused's in-court testimony. O'Connor A.C.J.O., writing for this court in O'Connor, described this distinction at para. 25:

When an out-of-court statement of an accused is introduced into evidence it does not have the same immediate connection to the trial itself as an accused's testimony and for that reason, even if shown to be false, it does not present the same threat that the trier of fact will confuse mere disbelief with affirmative evidence of guilt and improperly lessen the burden on the Crown.

(3) Arguments on Appeal

179The appellant makes two arguments on appeal on this issue.

180First, as the trial judge had indicated that she had found that there was no independent evidence of fabrication, she ought to have instructed the jury that the alibi, if disbelieved, had no probative value and was simply part of the narrative. The instruction that the statement was "just one piece of evidence to be considered with all the other evidence" invited the jury to draw the improper inference that the appellant's lie was indicative of a consciousness of guilt. The instruction thus invited the very mischief that was to be avoided.

181Second, if there was, in fact, independent evidence of fabrication, the instruction failed to provide the jury with the necessary tools to assess that evidence and determine whether they could find that the appellant had deliberately lied to conceal a consciousness of guilt.

182In response, the Crown argues that the circumstances in which the appellant made the statement to Detective Hill provided independent evidence of fabrication. In light of this evidence, it would have been appropriate for the trial judge to provide an instruction regarding the proper use of this evidence. However, in this case, the absence of an instruction did not cause prejudice.

(4) The Principles Applied

(a) The Circumstances of the Appellant's Statement Provide Independent Evidence of Fabrication

183To begin, I first consider whether there was independent evidence of fabrication capable of supporting an inference of the accused's consciousness of his guilt. In my view, there was. Accordingly, I conclude that the trial judge erred in determining otherwise.

184In reaching this conclusion, I consider the circumstances of the appellant's exculpatory out-of-court statement. I note that this court's description of the circumstances providing independent evidence of fabrication in O'Connor, at para. 31, are apposite:

His first statement was made the same day as the shooting and, importantly, was made to the police at a time when the police did not suspect the appellant and the appellant did not have reason to believe that he was a suspect. The police, as a matter of routine, questioned witnesses who might have information about the deceased's whereabouts prior to the shooting. The appellant's initial statement furnished a complete alibi and if true, would lead the police to conclude that he was not involved in the offence. That statement and the next two statements were very precise, both as to the appellant's whereabouts and the times he was in the various places. If the jury were to disbelieve the appellant's statements, they might fairly ask why would the appellant tell such detailed and specific lies to the investigators. Why not tell the truth? And how was it that the appellant was so well prepared with a detailed and precise statement about his whereabouts when questioned by the police? [Emphasis added.]

185I conclude that the circumstances of the appellant's statement to the police constitute independent evidence of fabrication. As in O'Connor, the appellant provided his statement to Detective Hill shortly after the shooting, at a time when he was not a suspect. The appellant's statement was detailed and precise with respect to the appellant's whereabouts and timing. The appellant volunteered this information without any prompting, and if believed, the information would deflect suspicion away from him. These circumstances, taken together, could reasonably constitute independent evidence of fabrication.

186Given the overt similarities between the circumstances arguably giving rise to independent evidence of fabrication in this case and O'Connor, I conclude that the trial judge erred in law in her understanding of what circumstances can give rise to such evidence. Applying the appropriate understanding of the law to this case, it is clear that there was evidence that arguably constituted independent evidence of fabrication. This, however, does not end the analysis.

(b) The Trial Judge's Instruction Did Not Prejudice the Appellant

187The trial judge concluded that there was no independent evidence of fabrication and should have instructed the jury that if they disbelieved the accused's evidence, they should disregard it. This did not occur. However, any resulting prejudice is lessened by the circumstances I have discussed demonstrating independent evidence of fabrication.

188As independent evidence of fabrication existed, the trial judge should have provided an instruction for the jury outlining the evidence that supported such a finding. The trial judge did not do so.

189As I have indicated, however, the question on appeal is not whether the trial judge should have given such an instruction, but whether the trial judge's failure to do so prejudiced the appellant's right to a fair trial: Polimac, at para. 106.

190I conclude that the trial judge's instruction did not prejudice the appellant. To the contrary, and similar to Polimac, the trial judge's failure to outline the independent evidence of fabrication may have inured to the appellant's benefit.

191I first consider whether the trial judge's approach to the jury instruction on this issue prejudiced the appellant. I note that, unlike in Polimac (see para. 94 of that case), defence counsel in this case asked for an O'Connor warning if the trial judge found independent evidence of fabrication. As the trial judge concluded that no such independent evidence existed, defence counsel was essentially deprived of any potential benefit of their requested instruction.

192Similarly, I note that defence counsel agreed to a specific version of the draft charge when the trial judge's proposed charge was circulated to counsel. This draft included the statement that the evidence was "part of the narrative for you to consider along with the rest of the evidence". The version that was given, however, did not include this language, instead stating that it was "one piece of evidence to be considered with all the other evidence".

193In my view, any prejudice arising from the trial judge's approach was mitigated by various factors.

194First, despite the appellant's argument on appeal that the trial judge ought to have instructed the jury that the alibi, if disbelieved, had no probative value, defence counsel at trial resiled from this position. Instead, trial defence counsel agreed to the proposed charge stating: "In all the circumstances this evidence is part of the narrative for you to consider along with the rest of the evidence."

195Furthermore, and more importantly, the trial judge's failure to outline the circumstances supporting independent evidence of fabrication may have inured to the appellant's benefit. This instruction would have focused the trier of fact's attention on the circumstances supporting a strong inference of fabrication. An instruction highlighting the circumstances supporting a finding of fabrication "may well have only emphasized the powerful case to be made for fabrication in the circumstances of this case": Polimac, at para. 106.

196Finally, I note that the trial judge's instructions to the jury otherwise equipped the jury with the tools necessary to assess the importance, or lack thereof, of the appellant's disbelieved evidence. In this respect, the trial judge instructed the jury to "keep in mind that people sometimes lie for entirely innocent reasons" when assessing the appellant's evidence that he was at the Cosmos Bar at the relevant time. The trial judge then referenced the testimony of multiple trial witnesses who were "involved in the criminal subculture", reminding the jury that "[t]hey all testified that they typically lie to the police when questioned about any matter."

197In my view, these instructions made clear to the jury that the simple presence of a lie did not necessarily give rise to a consciousness of guilt by the appellant. "While the safer course would have been to include" a more precise instruction, I "cannot say that the manner in which this issue was left with the jury undermined the appellant's right to a fair trial": Zekarias, at para. 21.

198In all the circumstances, I conclude that the trial judge's failure to provide the O'Connor instruction did not prejudice the appellant. Accordingly, I would dismiss this ground of appeal.

II. Did the trial judge err in concluding that the appellant's statements to police were voluntary and admissible?

(1) Background

199As outlined above, on August 22, 2006, three days after the discovery of Mr. Zalal's body, Detective Krista Hill was assigned to interview the appellant as part of the investigation into Mr. Zalal's death.

200That same day, the appellant contacted Detective Hill in order to retrieve his passport, which had been seized following his arrest in 2005 for an unrelated matter. The appellant left two voice mail messages. Detective Hill returned the appellant's calls, using the passport matter as an opportunity to invite the appellant to discuss the death of Mr. Zalal. While at the time, the appellant was not a suspect, he was a known associate of Mr. Zalal. Detective Hill took contemporaneous notes of the call. She testified that, while her notes were not a verbatim summary of the discussion, they covered everything that had been discussed.

201Detective Hill also testified that, although the appellant stated that he had no information to provide about Mr. Zalal's death, he provided the following information regarding his contact with Mr. Zalal on August 18, 2006:

• at about 2:00 p.m., he had picked up Mr. Zalal and two others to buy t-shirts;
• he dropped off Mr. Zalal and the others at one of their homes;
• at around 6:00 p.m., he spoke to one of the other men, at which time Mr. Zalal was still with him; and
• he was planning to meet Mr. Zalal and the others at a strip club in Gatineau, but did not end up meeting him there. Instead, he went with his wife to an exhibition and later to a bar in Québec.

202Contrary to the appellant's narrative, however, security footage from the only entrance and exit at the bar did not show the appellant or his wife in attendance. Cell tower records also showed that the appellant's cellphone did not use any of the cell towers near the bar.

203Prior to trial, the Crown brought an application to have the appellant's statement to Detective Hill admitted as voluntary: [R. v. Al-Enzi, 2016 ONSC 3574](https://www.can